Building safety: new regulatory regime confirmed

Despite significant disruption that we've all been recently facing, the UK Government published A reformed building safety regulatory system last month. This long-awaited document sets out the government's proposals to reform the regulatory regime where building safety is concerned. As expected, the proposed new regulatory framework is based on the recommendations of Dame Judith Hackitt from earlier consultation and recommendations. 

The detail of the proposed building safety regulatory system can be accessed here or you can read a summary below. There is no indication when a draft bill will be available. 

Key points

• The new regime will apply to residential buildings over 18 metres or six storeys – both for new builds and for existing buildings – following a transition period.
• There are new statutory roles for a Building Safety Regulator, Accountable Person and Building Safety Manager.
• There's a new gateway process to promote adequate building safety.
• Expect robust enforcement for those with statutory roles and duties.

What buildings will be affected?

The reforms will apply to new and existing multi-occupancy residential buildings over 18 metres or six storeys (whichever is reached first). This is wider than first proposed and recognises that there are other factors involved apart from height. The proposals may be extended further once government has more information on fire safety risk prioritisation, and the government will reserve to itself the power to extend the scope of the regulation in the future.

Existing buildings within scope

Existing buildings in scope will be required to comply with the new regulatory regime but there will be a staged transition period and the Building Safety Regulator will take into account the information available to the Accountable Person at the time of the application. Details of the transition period will be set out later this year. 

Refurbishments

Before a building in scope undergoes any defined refurbishment, the Building Safety Manager will need to engage with residents on their proposals and update the safety case on any changes that might affect the fire and/or structural safety of the building.

If the refurbishment is subject to the Building Regulations, an application must be made to the Building Safety Regulator and work cannot start without approval. 

If the refurbishment does not trigger the Building Regulations but could have an impact on fire and/or structural safety, then the Building Safety Manager will be required to notify the Building Safety Regulator, but work can commence without waiting for a response. 

Remedial works

If a review of the safety case leads to the identification of previously unknown fire and structural safety risks that require remediation, the Accountable Person will be expected to rectify the building to ensure the safety of occupants is prioritised. Building owners will remain legally responsible for ensuring the safety of their buildings and residents. 

New roles

The government proposes to place new duty-holders at the heart of the new regulatory framework. 

Building Safety Regulator

Central to the proposed regime will be the new Building Safety Regulator. Key responsibilities will be to: 

• implement a more stringent regulatory regime; this will involve the creation of a database of all buildings in scope and key duty holders for those buildings, undertaking a series of Gateway Point interventions, and conducting regular case safety reviews with building owners during occupation
• oversee the safety and performance of buildings, advise on changes to Building Regulations and Approved Documents and replace the current Building Regulations Advisory Committee, and
• promote the competence and assurance all those professionals, tradespeople and building control professionals working on all buildings.

Accountable Person

The Accountable Person is a new statutory role for that party to be responsible for applying for the Building Registration Certificate and will be legally responsible for ensuring that they understand fire and structural risks in their buildings and will mitigate and manage such risks.

The Accountable Person will be:

• the party with the legal right to receive payments through service charges or rent; there can be more than one Accountable Person
• required to appoint a competent Building Safety Manager to support them in carrying out the day to day functions, and
• required also to provide information in relation to the building and details of the Building Safety Manager.

Building Safety Manager

The Building Safety Manager role includes to: 

• ensure that any conditions in the Building Registration Certificate are complied with

• update assessments called safety case reviews
• engage with residents through a Resident Engagement Strategy, and 
• report into a mandatory occurrence reporting regime. 

Gateway interventions

There are three Gateways where Building Safety Regulator approval will be required before work can proceed or occupation commence. The Client will need to demonstrate to the Building Safety Regulator that the requirements of the building regulations are being met and risks are being appropriately managed in order to progress to the next stage of development. 

Gateway 1 (prior to planning)

Fire safety issues will need to be considered at planning stage, including emergency fire vehicle access to a building and availability of water supplies. A Fire Statement will need to be included with the planning application.

If a development benefits from a permitted development right, it will proceed straight to Gateway 2, but where there is a permitted development right which requires prior approval from the local planning authority, the developer will also need to notify the Building Safety Regulator.  

Gateway 2 (prior to construction)

Sign off will be required from the Building Safety Regulator before construction will be allowed to start. The Client will need to submit key information to the Building Safety Regulator to demonstrate compliance with Building Regulations and demonstrate how fire safety risk is being managed. 

Any changes during construction will need to be recorded from the original plans and updated in the change control strategy (which forms part of the construction control plan). Critical safety management changes will need to be notified to the Building Safety Regulator before further work can begin on site. 

Gateway 3 (prior to occupation)

The Building Safety Regulator together with local regulators will provide the building control function. The Client will be need submit as-built plans, a construction control plan, a Fire and Emergency file and a complete key dataset. The Client, Principal Designer and Principal Contractor will also be required to sign a declaration that, to the best of their knowledge, the building complies with Building Regulations. 

Golden thread 

Duty-holders will be responsible for creating and maintaining the golden thread of building information related to fire and structural safety. The golden thread will be held digitally to enable design changes to be captured and should be established the start of the construction cycle. 

Prior to occupation, the golden thread will have to be handed over from the Client to the Accountable Person and both will need to confirm that this has happened. The Accountable Person will be responsible for updating the golden thread after occupation.

Building Registration Certificate

A new building cannot legally be occupied until a Building Registration Certificate has been issued by the Building Safety Regulator. The Accountable Person will be responsible for applying for and meeting any conditions of the Building Registration Certificate which the Building Safety Regulator may attach.

Three types of conditions can apply: 

• special conditions (to deal with specific risks) imposed by the Building Safety Regulator
• voluntary conditions proposed by the Accountable Person
• mandatory conditions. 

It will be mandatory for the Building Registration Certificate to be displayed in a prominent area of the building.

Safety case

Safety case reports will be mandatory reflecting an approach of other hazard safety schemes. These will be updated by the Building Safety Manager to provide assurance that appropriate steps and actions are being taken to mitigate fire and structural risks. 

The Building Registration Certificate and safety case will be reviewed periodically by the Building Safety Regulator. A formal review could also be triggered outside of this periodic cycle where refurbishment takes place, there is a change in the Accountable Person or where the Building Safety Regulator considers it appropriate.  

Mandatory occurrence reporting 

The Building Safety Regulator will establish a system of mandatory occurrence reporting for any structural safety or fire safety related event which is perceived to represent a significant risk to life in relevant buildings. 

The Client will need to set up the framework during the design and construction phase into which the Principal Designer and Principal Contractor must submit occurrences. It will be a statutory function of the Building Safety Manager to set up a similar framework during occupation, and to report occurrences into it themselves. 

Residents rights and responsibilities

Residents of buildings in scope will have new rights to receive information about the safety of their building, be able to request access to safety information, be involved in decisions about the safety of their building, and have their complaints about safety dealt with quickly and effectively. 

Residents will also have clearer responsibilities regarding playing their part in mitigating risks in their building and to avoid actions that could pose a risk to the fire and structural safety of a building. There will be a new statutory duty requiring residents to cooperate with the Building Safety Manager. 

Enforcement

Critically, enforcement will be by the Building Safety Regulator with a range of powers including the issue of 'stop', 'compliance' or 'improvement' notices. Breach of any of these notices will be a criminal offence.  Revocation of the Building Registration Certificate and prosecution of duty holders and/or the Accountable Person is also envisaged.